Shand v Legal Complaints Review Officer

[2019] NZHC 3105

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1852

[2019] NZHC 3105

UNDER

the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990 and Part 30 of the High Court Rules

IN THE MATTER

of an application for judicial review

BETWEEN

GRANT DONALD RICHARD SHAND

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY

Second Respondent

Hearing:

24 October 2019 and further submissions 1, 8 November 2019

Appearances:

D P H Jones QC for the applicant Appearances excused for the first respondent

M J Hodge and L L Lim for the second respondent and the New Zealand Law Society as proposed intervener

Judgment:

27 November 2019

JUDGMENT OF PALMER J

The judgment was delivered by me on Wednesday 27 November 2019 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

D P H Jones QC, Auckland Meredith Connell, Auckland

SHAND v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 3105 [27 November 2019]

Context

[1]        Mr Grant Shand applies to judicially review decisions by the National Standards Committee (NSC) of the New Zealand Law Society (NZLS), the second respondent, and the Legal Complaints Review Officer (LCRO), the first respondent. The complainant, Mr Cowie, opposed Mr Shand before the NSC and the LCRO. But he does not wish to take part in this proceeding.

[2]        As the decision-makers, the LCRO and NSC are named as parties, consistent with s 9(1)(a) of the Judicial Review Procedure Act 2016. As is usual for decision- makers, they abide the Court’s decision on the application for judicial review.

[3]        However, in the absence of Mr Cowie, there is no contradictor. Accordingly, the NZLS itself sought to intervene as contradictor. The NZLS has had a policy of doing so. This brief judgment addresses the question of what status the NZLS should have in the proceeding.

The Lawyers and Conveyancers Act 2006

[4] The Lawyers and Conveyancers Act 2006 (the Act) provides for the regulation of the legal and conveyancing professions. Its relevant purposes, in s 3, are to maintain public confidence in the provision of those services, protect consumers and recognise the status of the legal profession. In order to achieve those purposes, among other things, it provides for a “more responsive regime” in relation to lawyers and conveyancers.

[5]        Section 63 of the Act continues the NZLS, a body corporate with all the rights, powers and privileges of a natural person and the powers allocated to it by the Act. Membership of the NZLS is voluntary but compliance with its regulatory powers over all lawyers is not. Under s 67, the NZLS’s regulatory powers include:

67       Regulatory powers

…

(e) to institute prosecutions against lawyers  or  other  persons  for  the breach of any statute, rules, or regulations relating to the provision of legal services:

…

(g)to pay all costs, witnesses’ expenses, and other payments incidental to, or connected with, any application or proceedings to which the Society is a party or at the hearing of which it is entitled to appear:

(h)to pay the whole or any part of the expenses incurred by members in attending meetings of the Council of the Society or meetings of any committee appointed by the Council.

[6] Part 7 of the Act requires the NZLS to establish and administer a complaints service and accompanying rules about lawyers.1 In doing so, s 124 provides that a function of the NZLS is to assist Lawyers Standards Committees. Section 126 requires the NZLS to establish and appoint Lawyers Standards Committees as part of its complaints service. The Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 provide for National Standards Committees and local Standards Committees. The Committees inquire into and investigate complaints.

[7]        Under s 194, a person who is subject to, or who makes, a complaint that is determined by a Standards Committee can apply for review of the determination by the LCRO. The NZLS itself is also entitled to apply for such a review. Under s 190, the LCRO is appointed by the Minister of Justice, after consultation with the NZLS and New Zealand Society of Conveyancers. Under ss 209 and 211, the LCRO has the power to confirm, modify or reverse any decision of a Standards Committee, or to direct it to reconsider a decision.

[8]        Under s 154, a Standards Committee can refer a complaint to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. The Committee acts as prosecutor before the Tribunal. Under s 212, the LCRO can also refer a complaint to the Tribunal. Or, the LCRO can direct a Standards Committee to lay a charge before the Tribunal. A decision by the Tribunal can be appealed to the High Court by the practitioner, the Standards Committee or the LCRO, depending on who brought the proceedings before the Tribunal.

1      See generally Paul Collins “Statutory discipline structure and procedures” in Matthew Palmer (ed)

Professional Responsibility in New Zealand (looseleaf ed, LexisNexis) at [110,015].

[9]        In Zhao v Legal Complaints Review Officer, Wylie J observed that “the relevant regulatory body should generally be named as a party to defend decisions of its decision-making bodies”.2 In relation to a decision of a Standards Committee, he indicated that body is the NZLS, on the basis that it establishes Standards Committees. In Deliu v Connell, where Mr Deliu applied to review decisions of the LCRO, Courtney J ordered NZLS be joined as a party in relation to a specific issue in which the NZLS had a direct interest.3

Submissions

[10]      Mr Hodge, for the NZLS, submits that, on reflection, the NZLS should be named as a party able to take an active part in the proceeding where a decision of a Lawyers Standards Committee is judicially reviewed. He submits a Standards Committee is part of the NZLS so it is unnecessary to name the NZLS separately. He also submits it should not be mandatory for the NZLS to take an active part in such a proceeding, where there is another active respondent for example; but it should still be able to do so. Where a decision of the LCRO is challenged, and the NZLS’s interests are not directly affected, he submits the NZLS should not be named as a party, but may be joined as intervener to act as contradictor, if the Court sees fit. Consequently, Mr Hodge submits it is not necessary to join the NZLS as intervener here, but the NZLS can take an active part in the proceeding. Alternatively, NZLS would be content to abide on behalf of its Standards Committees and seek to intervene on a case by case basis. Finally, he submits that costs should not be awarded against the NZLS given the public interest reasons for its involvement.

[11]      Mr Jones QC, for Mr Shand, submits that the application for review in this proceeding is against both the NSC decision and the LCRO so the NZLS is both abiding the decision, through the Standards Committee, and looking to enter the fray as a party (or intervener). If it does so, he submits the NZLS should be susceptible to a costs award in the usual way, otherwise the applicant is disadvantaged and the NZLS has a shield to protect it. If the NSC is found to be wrong in its decision, he submits

2      Zhao v Legal Complaints Review Officer [2017] NZHC 1561, [2017] NZAR 1760 at [9].

3      Deliu v Connell [2015] NZHC 2242.

it is part of the NZLS and the NZLS should not be shielded from an adverse costs event. Mr Shand takes a neutral stance on whether the NZLS is added as a party.

What status should the NZLS have?

[12]      The LCRO and Standards Committees, including the NSC, are decision- making bodies with adjudicative functions between two parties. It is appropriate that, when their decisions are challenged by way of either appeal or judicial review, those bodies abide the Court’s decisions as do other adjudicative bodies. The decision under appeal or review should speak for itself.4 Ordinarily, the argument about the decision is carried on by the opposing parties, who contradict each other. The adversarial system relies on the heightening of contradictions in this way, to facilitate decision- making by the appellate court. The NZLS itself, separate from a Standards Committee, may apply to intervene if it wishes to do so, for example if its interests are directly affected. But, otherwise, it need take no part in the proceeding.

[13]      However, when a complainant, or a practitioner, retires as a contradictor the adversarial system loses balance and the Court lacks assistance with one side of the issues. The Court can, and often would, appoint counsel to assist it by acting as contradictor. It is helpful that the NZLS is willing to act in that role as a matter of course, which I take to be the meaning of its submissions and practice. On most occasions, there is unlikely to be any conflict of interest in the NZLS acting for or against a practitioner or complainant. But a party is able to object to the NZLS acting if it considers there is such a conflict. And the NZLS is able to decline to offer its services.

[14]      I do not consider the NZLS’s role in assisting the court in this way arises because of its organisational connection to a Standards Committee which, indeed, might give rise to an uninformed perception of potential bias on the part of the NZLS. Rather the NZLS’s willingness to assist a court by acting as contradictor in a case involving discipline in the legal profession is an extension of its function of assisting to administer that system. On that basis, there is no reason why the NZLS should not

4      Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27]; Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 41, [2014] 1 NZLR 717 at [13].

also act as contradictor when a challenge to an LCRO or Tribunal decision regarding law practitioner discipline lacks a contradictor.

[15]      In practice, it seems most practical and efficient if, when the NZLS identifies a judicial review of regulatory decisions concerning lawyers that lacks a contradictor, the NZLS files and serves a memorandum advising the Court and the party of its willingness to act as contradictor. At the first case management conference, the Court can consider that and make decisions accordingly. I do not consider the NZLS would be acting either as a named party or as an intervener, but in the capacity of counsel assisting the Court by acting as contradictor. In that capacity, the NZLS would not have the right to appeal and would not be subject to, or eligible for, an award of costs. Since it is willing to act in that capacity in fulfilling its statutory functions in assisting to regulate the legal profession, neither would it be paid by the Court.

[16]      In this proceeding, on that basis, I appoint the NZLS as counsel assisting the court, to act as contradictor. No repleading is required.

Palmer J